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Pressure on the Open Meetings Law

A recent decision by the Colorado Court of Appeals puts us in mind of the state’s Open Meetings Law and the need for government decisions to be made in the clear light of day.

The decision, announced July 19, is worrisome to those who believe elected officials should conduct all their official business in clear view. The case concerned claims that e-mails exchanged between members of the Public Utilities Commission concerning proposed Clean Air-Clean Jobs Act legislation (ultimately passed into law) constituted a “meeting” as defined by the Open Meetings Law and were subject to that law, which requires proper notice of a public meeting and open discussion in a public forum.

The court ruled that the, “input on proposed legislation” in the e-mails, “was not connected to the PUC’s policy-making function,” that the exchanges constituted “gatherings,” not “meetings,” and were not “convened to discuss public business.”

We are troubled by this decision, in particular as it might bear on the actions of local elected officials.

The state’s Open Meetings Law gives citizens the broadest opportunity to participate in the public decision-making process by providing them access to as much information and as many opportunities to speak as possible. The law defines a “meeting” as “any kind of gathering, convened to discuss public business, in person, by telephone, electronically, or by other means of communication.” The Colorado Supreme Court has held that “public business” refers to a public body’s policy-making function. “A meeting is part of the policy-making process if it concerns a matter relating to the policy-making function of the body holding or attending the meeting.” The court held that if the meeting is “rationally connected” to the policy-making responsibilities of the body, it is subject to the Open Meetings Law.

We worry that the recent decision could lead some officials to think they can use the “policy-making” slant to excuse unlawful meetings.

The law for county and local bodies is clear: “All meetings of a quorum, or three or more members, whichever is fewer, at which public business is discussed … are open.” In other words, such meetings cannot be held unless required public notice is given and the public is allowed to attend. To glibly excuse such meetings now as “not relating to policy-making activity” would be an abuse of the court decision. There are no local issues confronted by elected bodies that are not “rationally connected” to that body’s policy-making responsibilities.

No three members of local elected bodies can gather, exchange e-mails or have phone conversations relating to public business unless the public knows about it and is invited. No two members of the three-member county commission can do this.

Further, we believe it is disingenuous (OK, unlawful) for an elected official to present policy materials to an administrator that are then distributed to other members of that body for consideration —in effect facilitating a meeting prohibited by the Open Meetings Law.

Government processes have been highlighted recently in Pagosa Country. It is critical that local officials conduct all their business in full view, open to all concerned citizens (as well as avoid all ex parte communications). It is also important that citizens note the Open Meetings Law does not pertain to most staff functions or meetings, so long as those meetings do not involve the specified number of elected officials. The public has no legally established right to demand presence at, or the right to speak at meetings of staff conducted as part of everyday business. The results of such meetings fall under the umbrella of the OML only when they are the subjects at a meeting of policymakers.

Karl Isberg

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